Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U.S. 153, 231, 2973, 49 L. Ed.2d 859 (1976) (MARSHALL, J., dissenting), I would grant the petition for certiorari and vacate the death sentence in this case. Even if I did not hold this view, I would grant the petition to consider whether a trial court's decision to transfer a capital trial of an Afro-American defendant to a county with no residents of the defendant's race violates the Equal Protection Clause or the Sixth Amendment's fair cross section requirement, as applied to the States by the Fourteenth Amendment. Just as state prosecutors may not use peremptory challenges to exclude members of the defendant's race from the jury, Batson v. Kentucky, 476 U.S. 79 (1986), state trial courts may not transfer venue of the trial to accomplish the same result by another means. [ Mallett v. Missouri 494 U.S. 1009 (1990) ][1009-Continued.]

Jerome Mallett, an Afro-American, was arrested for the murder of a white police officer that occurred in Perry County, Missouri. In 1980, over 1,100 Afro-Americans lived in Perry County, out of a total population of 16,784. Mallett was originally brought to trial in that county, but he requested a change of venue because of prejudicial pretrial publicity. Both the defense and prosecution offered suggestions for an appropriate venue; defense counsel specifically expressed concern that some members of Mallett's race reside in whatever county the court chose.

The judge ordered the case transferred to Schuyler County, a location that neither attorney had suggested. According to the 1980 census figures, Schuyler County contained 4,964 whites and 3 Afro-Americans; at the time of the trial, however, there were no Afro-Americans in the county. Mallett was convicted and sentenced to death by an all-white jury in Schuyler County. His conviction was upheld on direct appeal. In his petition for state post-conviction relief, Mallett argued that the Perry County judge's decision to transfer venue to Schuyler County violated his rights

under the Equal Protection and Due Process Clauses. After a hearing, a special judge ordered a new trial on both grounds; the State Supreme Court reversed his decision and affirmed the original sentence. 769 S.W. 2d 77 (1989) (en banc).

In Batson v. Kentucky, supra, 476 U.S., at 86, we held that "[p]urposeful racial discrimination in selection of the venire violates a defendant's right to equal protection because it denies him the protection that a trial by jury is intended to secure." To make out a prima facie case of purposeful discrimination, a defendant must establish first that he is a member of a cognizable racial group and that the state has acted to remove members of that race from the venire; second, that the procedure used by the state permits those " 'who are of a mind to discriminate' " to do so; and third, that the facts and circumstances of the case raise the inference that the state acted in a discriminatory manner. 476 U.S., at 96. Once the defendant has established a prima facie case, the burden shifts to the state to present a neutral explanation to rebut the inference. Id., at 97.

Properly applying Batson to these facts, the special judge found purposeful discrimination in the court's transfer decision. Specifically, he found that

" '1) the case involves a cross-racial murder of a state trooper; 2) the decision of [the Perry County judge] was made without giving counsel an opportunity to object; 3) counties which were of equal convenience to witnesses; equally free of pre-trial publicity; of equal, greater or less distance; and included blacks were tendered by the defense and prosecution; 4) no specific or compelling reason existed to send the case to Schuyler County; 5) there were no blacks living in Schuyler County at the time of trial; 6) movant is a black man; 7) the defense expressed concern that the county chosen include blacks.' " 769 S.W.2d, at 81.

These facts give rise to a prima facie case of purposeful discrimination. The court's transfer decision reduced the number of Afro- Americans on Mallett's venire; the virtually unrestricted discretion of the trial judge to make the venue determination presented an opportunity to discriminate; and the judge transferred the case to a county with no members of Mallett's race. The trial judge failed to offer a "specific or compelling" neutral explanation for the transfer. Ibid. [494 U.S. 1009 , 1011]

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